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“Drafting a Will is simple, and cheap…isn’t it?”

When it comes to drafting a will, working out who is going to get what out from your estate is the hard bit.  After you’ve figured that out, the actual drafting of the will is just a straightforward process, and anyone can do it – no need to get a wills lawyer involved.  That’s right, isn’t it?

Well, yes and no.

Most well-written wills follow a simple structure and avoid the use of legal jargon as much as possible.  When it comes to reading a will that was not drafted by a will lawyer and interpreting what it means, a common sense approach is encouraged.  If such a will contains a few technical glitches or inconsistencies, that should not matter provided the intention of the deceased is clear enough. [...]  READ MORE →

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Mirror Wills and Mutual Wills

Mirror Wills and Mutual Wills – Clearing up the confusion

Mirror Wills and Mutual Wills – they both start with “M” but what is the difference?

Mirror Wills (or reciprocal Wills) are very common between spouses or people in long term relationships.

Each party makes a Will “mirroring” the other’s Will. The Wills often leave everything to each other (other than any specific gifts such as  jewelry or other personal items) and then to their children if one has already died.

Mirror Wills reflect that the parties have common interests. Mirror Wills have the advantage of simplicity. Also, they do not unduly hamper the survivor who can change his of her Will to take account of changing circumstances. [...]  READ MORE →

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COVID-19 WE ARE HERE TO SUPPORT YOU

Wills and Estate Planning in a Time of Uncertainty

As the COVID-19 crisis plays out before us with each day bringing new reasons for anxiety and uncertainty, we understand that there is concern in the community surrounding the implications of the outbreak. People are worried and we are trying to help.

The imponderable concern people have now is ‘how long will it take for the virus to be brought under control’. The immediate concern people have is for the health and safety of their family and themselves. [...]  READ MORE →

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New legislation – witnessing of documents in the COVID-19 climate

New legislation – witnessing of documents in the COVID-19 climate

NSW Government has passed the Electronics Transactions Amendments (COVID-19) Witnessing of Documents Regulation 2020.

This makes it possible – temporarily – to complete important legal matters by means of an audiovisual link as long as specified declarations and certifications and other procedures are strictly followed. The measure applies for a six month period commencing 22 April 2020 unless extended by Parliament.

It remains important that documents are properly signed and witnessed. The consequences of failing to do so can render the documents ineffective and create uncertainty and additional cost. [...]  READ MORE →

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Executors of Estates

Traps and liability issues for Executors of Estates

You are appointed as Executor of an Estate. You appreciate the confidence expressed in you, and you are more than happy to help your relative or friend.

It can’t be that hard, can it?

What is often not appreciated is the responsibility that comes with being the Executor of an estate and that an Executor can be personally liable if the legal requirements are not performed properly.

The basic requirements are:

Executor’s role. An Executor is required to uphold the deceased’s Will and put into effect the deceased’s wishes as expressed in the will. This usually requires the Executor to obtain a Grant of Probate from the Supreme Court. The Grant proves to the rest of the world the Executors power to deal with the deceased’s assets
An Executor has a strict duty to properly and effectively administer the deceased’s Estate. An Executor can be personally liable for a breach of that duty. Executors must act impartially and prudently. [...]  READ MORE →

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Estate Planning and Superannuation

ESTATE PLANNING and SUPERANNUATION – The importance of considering Superannuation as part of your overall Estate Planning

Estate Planning Decision: In D17-18/120 (2018) SCTA 24 the Superannuation Complaints Tribunal (“Tribunal”) had to consider an application by the Deceased three minor children for payment of the death benefit and whether the binding death benefit could be overruled.

Facts

  • The Deceased had two adult children with his first wife and three minor children with his second wife.
  • After being diagnosed with a terminal illness the Deceased signed a new Will and at the direction of his solicitor, a Binding Death Benefit Nomination (“BDBN”) ( six months prior to his death.)
  • Both the Will and BNBN were in favour of his two adult children in equal parts.
  • The evidence supplied was that the Deceased had not been in contact with his second wife for many years; however had a strong and close relationship with his adult children.
  • The second wife sought that the death benefit be split equally among all children.  This application was rejected by the Trustee.
  • The second wife/minor children brought an application to the Tribunal.  It was asserted that the BDBN was not valid as adult children were not considered dependants.   It was also asserted that the BDBN was invalid as a result of duress, coercion and undue influence.

Decision

  • The Tribunal had to consider whether the Superannuation Decision to pay the death benefit as per the BSBN was fair and reasonable.

Validity of the adult children as “dependents”

  • The Tribunal held that for the BDBN to be valid the nomination must be in favour of the legal personal representative or a ‘dependant’ of the Deceased.
  • Further, the Tribunal found that, under section 10A of the Superannuation Industry (Supervision) Act 1993 a ‘dependant’ of a child includes a child of the deceased member, whether or not that child is less than 18 years of age.  Therefore, the Tribunal held that the adult children were both considered dependents and consequently thebinding decision was valid.

Influence/coercion

  • The Tribunal placed great emphasis on the evidence supplied by the Deceased Member’s mother and the solicitor who took instructions and gave a statement regarding the Deceased capacity.
  • The Tribunal noted the solicitor’s statement… “The deceased had clear instructions and had full capacity at the time he attended the (solicitor’s offices)

The above determination highlights the importance of getting your Will properly drafted and the need to consider superannuation.  If the Deceased had not obtained legal advice and updated his Will and his BDBN, the outcome of this contested Death Benefit Payment may have been very different. [...]  READ MORE →

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Estate Planning – Extinct Institutions in a Will

Estate Planning – Extinct Institutions and Charitable Purpose

In Hicks v Mater Misericordiae Ltd [2017] QSC 38, the Court had to consider whether a testator’s charitable gift in her will had failed its charitable purpose because of the institution’s closure after her death.

Facts

  • The testator left the residue of her estate to the ‘Medical Superintendent for the time being of the Mater Children’s Hospital in Brisbane for the purchase of medical equipment for the treatment of seriously ill children’
  • However after the testator’s death and before the distribution of her estate, the Mater Children’s Hospital’s public hospital functions were taken over by another children’s hospital

Decision

  • The court then had to consider whether the charitable purpose of this gift had failed because of the closure of the Mater Children’s hospital
  • However, the court established that the evidence allowed the residue of the testator’s estate to be applied as near as possible (cy-pres) to the objects of the defunct institution

If you would like more information or advice in relation to proper drafting of your will or estate planning you should consult a member of our Wills and Estate Planning Team.

Contact Mimi Su on (02) 9635 7966 or mimis@matthewsfolbigg.com.au [...]  READ MORE →

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Difference between joint tenancy and tenant in common important to consider in estate planning

The difference between a joint tenancy and tenant in common interest can be crucial when preparing your Will and to be considered as part of your overall estate plan.  It is important to understand the difference of the two.

A tenant in common holder can leave his or her interest by Will and a joint tenant cannot. This is because when the first of the joint tenant dies their interest passes to the surviving joint tenant.

For example for most married couples it is common that they have purchased property together as joint tenants.  If via each of their respective Will they are happy to leave that property to the survivor then there is usually no need to consider changing the joint tenancy. [...]  READ MORE →